civ pro 2 Flashcards
Initial Disclosures
must disclose info regarding individuals having discoverable info, documents supporting claims/defense, etc.
Generally withing 14 days of parties’ discovery conference
CA: No required automatic disclosures but parties may agree to initial disclosure
Expert Testimony
Identify expert witness and produce expert reports.
At least 90 days before trial or 30 days after disclosure of opposing party’s expert evidence on same subject matter
Scope of Discovery
party may seek to obtain any non-privileged matter that’s relevant to claim/defense AND proportional to needs of the case
Relevance
Info need not be admissible in evidence to be discoverable.
CA: Disclosure of all material relevant to subject matter of litigation
Experts
expert witnesses may be deposed but expert report drafts and disclosures are protected. Party must disclose identify of expert witness expected to testify at trial and provide written report or summary to opposing party within 90 days before trial
CA: Can request all parties simultaneously disclose expert witness lists, details of trial testimony and all writings/reports and experts be available for deposition
Work product
Party can’t discover documents prepared in anticipation of litigation unless other party can show substantial need and cannot without undue hardship obtain a substantial equivalent by other means
CA: Attorney’s impression, conclusions or opinions are absolutely privileged
Discovery Conference (Rule 26f)
parties must meet and confer at least 21 days before scheduling conference to consider nature of claims/defense
CA: Ct must hold initial case management conference within 180 days of filing complaint. Parties required to meet and confer regarding planning of discovery
Oral Depositions
can take place any time after discovery conference
limited to 10 per party unless showing of good cause to court
CA: 20 days time limit on notice of deposition. No limit on number
Written Depositions
(1) cross questions must be served within 14 days after service of direct questions
(2) redirect questions must be served within 7 days after service of cross-questions
(3) re-cross questions must be served within 7 days after service of redirect questions
Interrogatories
25 written interrogatories per party relating to non-privileged matters relevant to case and proportional to needs of case. If additional question, must either withdraw extra or seek courts permission
CA: Unlimited number of interrogatories and up to 35 specially drafted interrogatories
Request to product documents (RFAs)
party has 30 days from being served with request or 30 days from parties first Rule 26f conference, if request was served prior to that conference to respond
Physical/mental exams
court may order person to submit exam if physical or mental condition is in controversy. Ct order + show of cause
CA: attorney must be permitted to attend examination
Request for Admissions (RFAs)
party can serve written request for admissions on any relevant, nonprivileged matter relating to statements or opinions or facts
CA: limit admissions to 35 requests
Subpoena
Issued from court where action is pending, used to command nonparty to take an action
attorney-client privilege
protects info exchange confidentially between client and attorney. Convo must be intended to be confidential and was made for purpose of obtaining legal advice
motion to compel
If party fails to respond to discovery that has been properly served, then the party seeking the info may move to compel such discovery.
Motion must be served on all parties + accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure of info without court action.
sanctions
if party fails to obey court order regarding discovery, courts may impose sanctions subject to abuse of discretion standard
voluntary dismissal
by filing notice, stipulation or court order w/o prejudice.
CA: after commencement of trial, P can only dismiss with prejudice
involuntary dismissal
when P fails to prosecute/comply with Rules or court order D can move to dismiss which if granted is with prejudice and operates as an adjudication on the merits
2-Dismissal Rule
a voluntary dismiss of a second action operates as an adjudication on the merits when the plaintiff voluntary dismissed:
(1) the first action in federal court or state court and
(2) the second action based on the same claim in federal court by filing notice of dismissal
Default judgment
By Court Clerk – may be entered if (1) D hasn’t responded at all (2) claim is for money damages (3) P gives an affidavit of sum owed and (4) D is not a minor or incompetent
By Court – Ct must enter and hold a hearing on damages
Summary Judgment
shall be granted if moving party shows no genuine dispute as to material fact + is entitled to judgement as a matter of law. Ct will construe evidence in light most favorable to P. May be filed within 30 days after close of all discovery
Declaratory judgment
court tells parties their rights and responsibilities w/o awarding damages or ordering parties to do so
Form of Verdicts
Special: written finding made by jury on each issue of ultimate fact
General: typically decision by jury as to prevailing party
General with special interrogatory: used to ensure that jury independently considered material facts of case
Judgment as a matter of law
prior to submission to jury, party can file JMOL.
granted if no reasonable jury could finding for the nonmoving party.
JMOL/Directed Verdict
can be made by D at the end of case or either party after both sides rest. Reasonable jury wouldn’t have legally sufficient evidentiary basis to find for nonmoving party. Ct views evidence in light most favorable to party opposed. Any time before case is submitted to jury
Renewed JMOL
if court doesn’t grant directed verdict, movant can file JNOV no later than 28 days after entry of judgement. Case can be granted on grounds raised in pre-verdict motion
Motion to amend/make additional findings
(nonjury trial) must be made within 28 days of entry of judgement
relief from judgment or order
court can relieve party of final judgement within reasonable time and no later than 1 year following judgment entry for (1) mistake (2) newly discoverable evidence or (3) fraud, misrepresentation of opposing party
appeals
must generally be filed with district clerk within 30 days after judgment or order being appealed is entered. If its a federal govt, agency or official, then within 60 days of judgment
CA: Once trial ct enters judgment against one party and leaves no further issues for resolution, its deemed a final judgement and is immediately appealable
final judgment rules
federal courts of appeals have jx over appeals of final judgment of district court
Standard of review
De Novo – pure legal issues
Clear error – factual issues in bench trial
Substantial evidence – factual issues in jury trials
Abuse of discretion – discretionary rulings by judge
full faith and credit clause
if valid judgemnt rendered by court that has jx over parties, and parties receive proper notice and reasonable opportunity to be heard, judgment will receive same effect in other states
claim preclusion (res judicata)
prevents relitigation of any part of cause of action thats been adjudicated on its merits.
Valid judgement on merits
Sufficiently identical claims
Sufficiently identical parties
Issue preclusion (collateral estoppel)
same issues, actually litigated, final and valid judgement, essential to judgement
motion to quash
court may modify or quash a subpoena that requires (1) disclosing unretained experts info/opinion that doesn’t describe specific occurrences in dispute and results from experts independent study instead of party’s request or (2) trade secret or other confidential research, development or commercial info
7th amendment demand for jury trial
party may demand a jury trial on any triable jury issue by (1) serving other parties with written jury demand no later than 14 days after the last pleading directed to the issue is served and (2) filing demand with court within reasonable time after service
- extends to legal but not equitable issues. AIC exceeds $20
stay of execution/enforcement
most final judgements are automatically stayed for 30 days unless court states otherwise.
doesn’t apply to orders (1) granting injunction/receivership or (2) directing an accounting in patent-infringment action. These orders can be enforced and executed immediately
rule 26(f) conference
a party may generally not seek discovery until after the discovery conference pursuant to Rule 26f. Rule 26f requires that the parties confer as soon as practicable and in any event at least 21 days before scheduling conference is to be held or scheduling order is due
discovery challenge
When discovery is challenged, the court must weigh the party’s interests in seeking discovery against the privacy interests of the party resisting discovery.
